9911796707
TMI Blog2008 (9) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Group. The Dock officer on examination forwarded the representative samples to the Group. These were then examined in the presence of the appellant and their CHA. On examination, the description on the packages of the subject goods were found to be - (a) 3 Love Games, only of 40+ - 40+ Strippoker, 40+ Truth or Dare Cards, 40+Love Dice; (b) Love Dart Game; (c) Beer Shooter game; (d) Kama Sutra Memory - with funny sexy assignments (including Kamasutra postures in drawing); (e) Hanging long drinking glass; (f) Kamasutra, the game of love - passion game - how do I pamper her; etc. 3. The factual matrix has been reproduced from the impugned order. The representative samples, relating to item Nos. 1, 3 and 4 of the bill of entry, described the goods as 'Glass Games - small', 'Carton Games - big' and 'Carton Games - small', respectively. These were found to contain certain cards, with instructions inscribed on these for performing certain acts/actions by the players when they drew the cards. Item No. 8 of the said bill of entry d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... your choice, starting at the ankles and slowly making your way upwards. Only this person can determine when you should stop; (viii) What is the most beautiful part and what is the tastiest part of your partner's body; (ix) What is your favourite toy in bed; (x) Tell what you didn't like about the last porno film you watched; (xi) Fiddling - take her bra off without her having to take off an item of clothing (blindfolded); (xii) Tender lips - place her on the bed or on the ground. Ask her to Open her mouth a little. Now caress her lips and her tongue softly with your wet finger (blindfolded); (xiii) Forbidden fruit - she holds an apple (or another piece of fruit) under her chin (between her breasts is also allowed). He must now eat his forbidden fruit without it falling down (blindfold on); (xiv) Pet name - bare her belly. Write per names on her belly using either your finger or your tongue. If you do it right she should be able to guess the names (blindfold on); (xv) At your fingertips - place her on the bed, bare her back and caress it with your fingertips. While caressin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e liable to confiscation, the importer was liable to penal action under Section 112(a) of Customs Act, 1962. Hence a show cause notice was issued to the appellant proposing confiscation of the goods and for imposition of penalty. 7. The appellant replied to the notice. Personal hearings were also granted. After considering the submissions of the appellant and after taking into considersation other material on record, the lower authority held goods covered by item Nos. 1, 3 and 4 and part of item No. 8 as obscene and objectionable. Such goods were absolutely confiscated. Other goods were ordered to be released, subject to fulfilment of certain conditions. A penalty of Rs. 40,000/- was imposed on the appellant. The appeal is directed against these decisions of the lower authority. 8. In the grounds of appeal, the appellant have stated that the lower authority decided the case mechanically on surmises and conjectures; that he was confused about the terms 'obscenity', 'sensuous' and 'sexually explicit' used in the impugned order and failed to consider the true meaning and definition as given in the Oxford Dictionary; that the lower authority erred in holding the descriptio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant, I have perused the show cause notice. The descriptions on the packages of the imported goods found at the time of examination of the representative samples have been reproduced in paragraph 3 of the show cause notice. So also the notice reproduces the descriptions found on the various items imported under the bill of entry. Apart from this, the show cause notice also refers to instructions as found inscribed on the cards, which are required to be performed by the players of the cards. All this material, which have been lifted from the descriptions given on the representative samples of the imported goods are no doubt pieces of material evidence. I, therefore, do not have any hesitation in discarding the claim of the appellant that the show cause notice is devoid of supporting evidence. 12. The appellant, on the other hand, assert that in case the Department considered that the imported goods were obscene, then such assertion by the Department should have been backed by evidence in the form of expert opinion in the, notice itself. Further, the lis should have been resolved on the basis of an expert opinion and not by the lower authority himself. I have carefully considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that obscenity is required to be decided only on the basis of a certificate given by an expert. These findings of the Commissioner (Appeals) have been wrongly construed by the appellant as the decision of the Tribunal. 14. The Supreme Court in Ajay Goswami (supra) had reviewed the law on obscenity and have in paragraph 49 of its judgment extracted the decision of the Court in case of Samaresh Goswami v. Amal Mitra. The relevant portions of the latter decision are extracted as - '...In India, however, the responsibility of the decisions rests essentially on the Court. As laid down in both the decisions of this Court earlier referred to, "the question whether a particular article or story or book is obscene or not does not all together depend on oral evidence, because it is the duty of the Court to ascertain whether the book or story or any passage or passages therein offend the provisions of section 292, I.P.C". In deciding the question of obscenity of any book, story or article the Court whose responsibility it is to adjudge the question may, if the court considers it necessary, rely to an extent on evidence and views of leading literary personage if available, for its ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice, the lower authority was correct in coming to the conclusion that the said goods are obscene. 17. The term obscene has as such not been defined. However, the general law of obscenity in India can be found in Section 292 of the Indian Penal Code, 1860, though a deeming provision has been introduced in this section. The Courts have over a period of time evolved the law and have laid down the test for such determination. This law has been extensively dealt with by the Delhi High Court in the case of Maqbool Fida Husain v. Raj Kumar Pandey [2008 INDLAW - Del 426]. Also it would be fruitful to refer to the Supreme Court decision in Ajay Goswami (supra), a decision that has been relied upon by the appellant. 18. A book, pamphlet, paper, writing, drawing, painting, representation, figure or any object shall be deemed to be obscene if (i) it is lascivious; (ii) it appeals to the prurient interest; and (iii) it tends to deprave and corrupt persons who are likely to read or see it. In Samaresh Bose v. Amal Mitra, the Supreme Court while distinguishing between vulgarity and obscenity, held that vulgarity may arouse a sexual feeling of revulsion, disgust and even boredom but un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or corrupt a person exposed to such matter and cannot therefore, without remark, be said to be obscene. Also to fall within the scope of 'obscene' under Section 292, the ingredients of the subject must lie at the extreme end of the spectrum of the offensive matter. The legal test of obscenity is satisfied only when the impugned art/matter can be said to appeal to unhealthy, inordinate person having perverted interest in sexual matters or having a tendency to morally corrupt and debase persons likely to come in contact with the impugned art. 19. Here I would like to state that the observations, opinions, comments or conclusions, which have been made, expressed or drawn by the various Courts, are in the context of art, literature, cinema or publications. These works of art, literature or cinema and of publication are works or publications by persons who have sought to disseminate their intellectual ideas, thoughts or expressions, through such media, and which may be unacceptable in the existing value system of the contemporary society. Such ideas, thoughts or expressions are no doubt essential for the progress of the society. However, some of these ideas, thoughts or expression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are obscene and objectionable. I endorse his decision. 21. The appellant has also raised some points, which need to be answered. These are - (a) that the lower authority has not applied his mind in deciding the case and has mechanically on surmises and conjectures disposed of the issue. In this regard I have to state that the lower authority has dispassionately examined each and every item of import. On going through the instructions for each, he has found only item Nos. 1, 3 and 4 and part of item No. 8 obscene and others were not. Detailed reasoning has been given in respect of those found obscene. This itself speaks of the objectivity of the lower authority; (b) that similar goods are available in the market and that they should also be allowed import of such goods. They have drawn parallel to sale of "Confidum" and "Crezendo" by M/s. Hindustan Latex Ltd., sale of books and magazines such as "Mind-blowing Sex" and "Cosmopolitan" which have pictures/photographs depicting nudity and are available freely in shops like M/s. Crossword and have also referred to magazine India Today which published article where the cover page ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
